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A Better Partnership
May 12, 2009

Chief Justice Kelly on Applications for Leave

Chief Justice Kelly discussed applications for leave to appeal with us at length.' Her comments help clarify for counsel and litigants when the Court is likely to grant oral argument on the application (i.e., a MOA), the effect of amici on the decision to grant leave, and how to brief an application for leave (hint, don't regurgitate the briefing from the Court of' Appeals).' Most surprising to us was Chief Justice Kelly's comment that she reviews each of the more than 2,000 applications for leave filed with the Court annually.

OCJ Blog:' According to the most recent annual report of the Michigan Supreme Court there were 2,612 cases filed with' the Court in 2007, most of which would have been by' application.' Do you personally review each application' for leave as filed with the Court'

CJ' Kelly:' ' Yes.' I think all seven of us do.' The applications are processed through the clerk's office.' The commissioner's office then prepares a recommendation for us with them, along with a copy of lower court opinions' and sometimes some exhibits, attachments, along with a' recommendation.' So we see each application and vote on' it.' And each month, twelve months a year, I go through' anywhere between 150 and 250 applications.' And I do it' with the help of my clerks, but I definitely pore over' each one. ' And I do that probably because I view each of them as important, and if I should miss an application' that should be considered at greater length, it probably would never come back before me.' It would probably' simply be dismissed.' So I view it as very important, and I actually hold or cause many applications to be' discussed before the others partly because of my concern about allowing things to slip between the cracks.

OCJ Blog: ' Do you have an understanding as to whether or not your practice of reading all of the applications is shared by your colleagues on the Court'' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '

CJ Kelly:' We don't necessarily compare notes about that, but I know that each justice votes each month on whatever' number of applications have been submitted.' So that --' and many others hold cases, too, so it certainly appears that they've had a close look at them.' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '

' OCJ Blog:' Under MCR 7.302(g) the Court can resolve an application for leave to appeal by granting or denying the [application], issuing a peremptory order, or by' [ordering' oral argument]' on the application.' What do you personally look for in an application for leave to determine whether it should' be heard as a calendar case'

CJ Kelly:' Well, I look at the factors laid out in MCR 7.302(b).' ' '

And, obviously, one is always interested in knowing whether the case history has potential significance or' particularly whether it involves an issue that has been' resolved differently by different courts below or if it' involves a new statute, one that has never been tested before.' Or if it involves an old law which maybe has' seen better days and should be replaced.' Those are some' of the major reasons that I know I look at an application of being meritorious of [a]' grant.' ' ' ' ' ' ' ' ' ' ' ' ' '

OCJ Blog:' And what factors go into your decision or your preference with regard to hearing cases as a calendar' case or, for example, on argument on the application'' ' '

' CJ Kelly:' Occassionally a case has only one issue and it looks as if it could be disposed of rather easily if counsel' argues in a certain way.' And that is one reason why I might be interested in what we call a MOA, or an' argument on the application.' Occassionally the granting of a MOA is actually a compromise.' You may have three' justices who want to grant leave and three who don't' want to grant leave, and the seventh one will say, "Well, I don't want to go all the way through a grant, but I'll at least vote for a MOA and we can give it a closer look by allowing counsel to come before us."' My default setting is that I'd prefer to grant leave on cases that' appear to have merit and give counsel and -- to give counsel full opportunity of argument and briefing.

OCJ Blog:' I know . . . that because the Court has the ability to' peremptorily decide a case based on the application that counsel tend to essentially resubmit all the arguments they made to the Court of Appeals.' But there's another' train of thought that perhaps what counsel should be doing is . . . focusing their' application on the grounds for leave to appeal and' diminishing the actual arguments in favor of their position. ' In other words, arguing this case is worth' granting leave and leaving the merits of their position' somewhat in a lesser state.' What is your preference when you see an application'

CJ Kelly:' My preference is to look for the grounds for grant rather than all of the merits.' And my preference also' is not to dispose of cases peremptorily.' There's been a tendency to do that a lot in recent years, and I'm' hoping that we will depart from that in the future.' ' ' ' '

' OCJ Blog:' How and to what extent do amicus curiae briefs influence your vote on an application for leave'

' CJ Kelly:' They can be very important, and I'm always happy to see amicus.' Number one, if I see one or several amicus I' tend to suspect that the case involves an issue that has some broad appeal or interest.' Also, frequently --' well, not frequently, but certainly from time to time' counsel for the litigants, although he or she might do a good job for his or her client, doesn't really look at the big picture that we really must look at in this' court to determine what the effect of the case could be on the jurisprudence of the State.' So often amicus' will come in with a more broad view of what the implications of the issue are and give us an understanding that we might not get from retained' counsel or assigned counsel.

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